NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 24, 2012
October 3, 2012
November 2, 2012
December 14, 2012
February 8, 2013
March 25, 2013
April 11, 2013
May 10, 2013
June 11, 2013
June 21, 2013
June 25, 2013
June 27, 2013
Actual Record Closed Date: August 20, 2013
Hearing Officer: Israel Wahrman, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 24,
2012
Aurelia Mack, Advocate (Via Telephone) — Parents
Director of Student Services — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2012
Aurelia Mack, Advocate — Parents
Parents
Director of Student Services — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2,
2012
Aurelia Mack, Advocate (Via Telephone) — Parents
Director of Student Services — DOE
Director of Student Services — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14,
2012
Aurelia Mack, Advocate — Parents
Parents
Director of Student Services — DOE
Director of Student Services — DOE
(Via Telephone) — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 8, 2013
Aurelia Mack, Advocate — Parents
Assistatant Principal (Via Telephone) — Parents
Director of Student Services — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 25, 2013
Aurelia Mack, Advocate — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 11, 2013
Aurelia Mack, Advocate — Parents
(Via Telephone) — Student
(Via Telephone) — Student
(Via Telephone) — Student
(Via Telephone) — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 10, 2013
Aurelia Mack, Advocate — Parents
Parents
(Via Telephone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 11, 2013
Aurelia Mack, Advocate — Parents
Assistant Principal (Via Telephone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2013
Aurelia Mack, Advocate — Parents
) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 25, 2013
Aurelia Mack, Advocate — Parents
Associate — Parents
(Via Telephone) — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2013
Aurelia Mack, Advocate — Parents
BACKGROUND AND POSITIONS OF THE PARTIES
On July 16, 2012, I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer, pursuant to the 20 U.S.C. ϸ 1415 (b) (2) as well as Section 504 of the Rehabilitation Act, 29 U.S.C. ϸ 701 in the matter of I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: November 2, 2012, December 14, 2012, February 8, 2013, March 25, 2013, April 11, 2013, May 10, 2013, June 11, 2013, June 21. 2013, June 25, 2013, and June 27, 2013. The compliance date for this hearing was extended for reasons related to availability of witnesses, illness in the family of , illness by the advocate, and in the end, time to receive the final transcript, and time for both parties to complete and submit their written closing documents.
An impartial due process hearing was requested in a letter dated July 7, 2012 but received by the New York City Department of Education’s Impartial Hearing Office on July 16, 2012, written by Aurelia Mack, Parent Advocate, on behalf of the parent of The view of the parent is that who is in a class , is nonetheless and requires and Individualized Education Program (IEP) and services. Although received services while he was , in the form a , his mother explained that she has been unable to get services for since he began school, despite her continuing concern, which she has repeatedly shared with school officials, that such services are needed. Tr. 187-192, 816-
992. The Department of Education (DOE)’s
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The obligation of the school district is to provide a with a With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” Board of Education v. Rowley, 458 U.S. 176, at 198. The third circuit, however, has held that an IEP must provide “meaningful educational benefit.” T.R. ex. Rel. N.R. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000). In Rowley, the case involved a student who was progressing nicely in regular education classes. With regard to a student attending classes, however, in Deal v. Hamilton County Board of Education, 392 F.3d 840 (2004), at 864, the sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “ of what constitutes FAPE was cited without comment in a second circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217. Also, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.
Tribunals should be careful about delineating what specifically a program should look like, or as stated by the United States Supreme Court, “courts must be careful to avoid imposing their view of preferable educational methods . . .” Rowley, 458 U.S. at 207-08.
The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or (c) caused a deprivation of educational benefits. 20 USC ϸ 1415 [f][3][E][ii]. As stated in Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 [SDNY 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008], procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents – meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent’s participation in the creation or formulation of the IEP, constitute denial of FAPE.
New York State’s regulations define Student with a as a student who “… has been identified as having a and who requires services and programs…” 8 NYCRR 200.1 (zz). The requirement for services and programs is a necessary ingredient for classification; only if there is a need for such services may a classification be assigned. 34 CFR ϸ 300.7 [a][1], Application of a Child with a , Appeal No. 00-049, Application of a Child with a Appeal No. 05-047.
The Rowley decision of the United States Supreme Court, cited above, like here, dealt with a case of student attending regular education and dealt with whether the district was obligated to provide supplementary services. The Court stated that it was the obligation of the school district “if the child is being educated in the regular classrooms of the public education system, [it] should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id. at 203-204. The Court further reasoned that there is no obligation for the State to provide services “sufficient to maximize each child’s potential ‘ commensurate with the opportunity provided other children.’ “ Id. at 198.
This question is addressed by two letters. In Letter to Lillie/Felton, 1995, the letter expressed the view that there is no exclusion of children ; i.e. each student must be measured as against his or her own expected performance rather than some arbitrary general standard. In another letter, Redacted Letter from OSEP, written by Alexa Posny, Acting Director of the Office of Programs and dated January 13, 2010, gifted students with are addressed as follows:
The Individuals with Education Act ( IDEA) is silent regarding students. It remains the Department’s position that students who have high cognition, have and require and related services are protected under IDEA and its implementing regulations. Under 34 CFR ϸ 300.8, a child must meet a two-prong test to be considered an eligible child with a : (1) have one of the specified impairments and (2) because of , need and related services. For
The letter further explained that the IDEA and its regulations “do provide protections for students with who required to address their individual needs.” Ibid.
ORDER
The following is therefore ordered:
1. A CSE Team is to convene within two weeks of receipt of this order and is to classify as having
2.
3.
4. are to be conducted and a report generated within thirty days of receipt of this order. The team should reconvene to consider the results of these findings and the IEP amended if needed, based on the evaluation results.
5. At the next annual review meeting, the team should consider whether any additional program and are needed with regard to addressing the . Dated: August 22, 2013
________________________
ISRAEL WAHRMAN, ESQ.
Impartial Hearing Officer IW:mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
H. pages I 2/23/11, 2 pages J 4/8/11, 3 pages K report 10/19/11, 1 page L Omitted M Letter to 6/14/12, 1 page N Planning Report 7/11/12, 1 page O Report 9/19/08, 1 page P Not Identified 12/15/08, 3 pages Q Report 1/21/08, 1 page R Report 11/18/08, 1 page S dated 5/7/12,2 pages T dated 5/14/12,4 pages U Report 12/21/08, 2 pages V Report 12/17/08, 3 pages W Classroom,4/27/11, 1 page X 5/4/11, 4 pages Y Report 5/11/09, 3 pages Z Omitted AA 12/19/08, 4 pages BB Notice of IEP 4/13/11, 2 pages CC Not Identified 12/21/08, 2 pages DD Not Identified 12/17/08, 3 pages EE Consent for 3/20/09, 1 page FF Letters 3 pages GG Cumulative Record Document 7/15/12 HH Report Card 9/09-6/10 II Approval 2/11/09 JJ FNR dated 2/11/09 1 page KK Report Card 9/10-6/11 LL Teacher Notes to Home 9/04-9/08, 1 page MM Parent letters dated 11/5/12 and 11/10/12, 2 pages NN Report card dated September, 2012, through June, 2013 OO, 03/27/2013, 6 pages PP Email requesting, 03/05/2012, 3 pages QQ Parental letter, 09/07/12, 1 page RR 04/14/11, 6 pages SS Report to family, 09/2012 to 06/2013, 2 pages VV receipt, 5/1/13, 1 page WW, 05/19/13, 14 pages AAA New York City Department documents Re:, April, 2009,2 pages BBB, undated,5 pages CCC Blog, 06/21/2013, 3 pages DDD, September, 2012, 2 pages EEE Children, June 21, 2013, 4 pages FFF, 06/21/2013, 3 pages GGG, 06/21/2013 2 pages HHH Standards, 06/21/2013, 4 pages III Information about 06/21/2013, 3 pages JJJ New York State Education Regulations, June 21, 2013, 3 pages KKK New York State Education, June 21, 2013, 1 page LLL, Confidential, 01/14/2009, 5 pages MMM Annual Goals Short Term 02/11/2009, 4 pages NNN, Various-2008,23 pages OOO History, 12/21/2008,[2] pages QQQ, 21 pages RRR Finalized report card, 2012-2013, 4pp (2 pages; Parents)
DEPARTMENT OF EDUCATION
1 dated 6/21/12, 5 pages
Footnotes
[2] dated 6/20/12, 5 pages IHO I DOE Closing Statement, undated 3 pp II Parent’s Closing Brief, undated, 34 pp